This is in response to your request for an opinion concerning the application of the domestic service exemption under the Fair Labor Standards Act (FLSA).

Your client, a provider of services and support to persons with disabilities and to special needs youth, supplies nurses, nursing assistants, home care aides and
other personnel who provide medical care, personal care services and other support services in residential settings.

Under the proposed plan, a licensed practical nurse (LPN) or registered nurse (RN)
will be employed by your client to live with a special needs youth who is a
19-year-old quadriplegic in his own apartment. The resident nurse will be paid
a salary and benefits to oversee the individual’s care on a 24-hour basis. The
LPN or RN would also have some number of relief hours during the day or week,
probably five to six hours daily. The LPN or RN would generally be expected to
be able to sleep through the night, with the only expected interruption in
sleep being one catheter change during the night. Thus, the resident nurse
will be able to sleep with only this one regular interruption. The nurse’s
general duties will include companionship, supervision, preparation of meals, assistance
with personal hygiene (including bathing, dressing, and brushing of teeth), and
attending to medical needs (including changing of catheter, monitoring of
ventilator, and periodic suctioning). You seek a confirmation, that the
“domestic service” exemption contained in § 13(b)(21) of the FLSA will apply to
this situation.

As you know, § 13(b)(21) provides an exemption from the overtime requirements of
the law for “any employee who is employed in domestic service in a household and who resides in such household.” Nurses, certified nurse aides, home health aides, and other individuals providing home health care services fall within the term “domestic service employment” when they provide services in or about a private household. ” 29 CFR § 552.3. The term is defined the same for purposes of both § 13(a)(15) and § 13(b)(21); see generally, 29 CFR 552.101; opinion letter dated April 8, 1999. As Section 552.3 states, the sample list of jobs in the regulation that may qualify as domestic service employment is
only “illustrative and not exhaustive.” A copy of the Regulations, Part 552 is enclosed. The 13(b)(21) exemption may be applicable also to employees employed
by an employer or agency other than the family or household using their services. [1]

Based on the information provided in your letter, it appears that this situation would meet all of the requirements of the exemption. It is, therefore, our opinion that the LPN or the RN would qualify for the “domestic service” exemption under § 13(b)(21) of the FLSA. In addition, registered nurses may qualify for the minimum wage and overtime pay exemption contained in section 13(a)(1) of FLSA for bona fide professional employees, if all pertinent tests
(including payment on a salary basis) discussed in Regulations, 29 CFR 541.300 (copy enclosed) are met.

The § 13(b)(21) exemption “does not excuse the employer from paying the live-in
worker at the applicable minimum wage rate for all hours worked. In determining the number of hours worked by a live-in worker, the employee and the employer may exclude, by agreement between themselves, the amount of sleeping time, meal time and other periods of complete freedom from all duties
when the employee may either leave the premises or stay on the premises for purely
personal pursuits. For periods of free time (other than those relating to
meals and sleeping) to be excluded from hours worked, the periods must be of
sufficient duration to enable the employee to make effective use of the time.
If the sleeping time, meal periods or other periods of free time are
interrupted by a call to duty, the interruption must be counted as hours
worked. “ 29 CFR 552.102(a); see regulations 29 CFR Part 785, §§ 785.16(a);
785.19 and 785.23, copy enclosed.

This opinion is based exclusively on the facts and circumstances described in your request and
is given on the basis of your representation, express or implied, that you have
provided a full and fair description of all the facts and circumstances that
would be pertinent to our consideration of the question presented.

Existence of any other factual or historical background not contained in your request might
require a different conclusion than the one expressed herein. You have
represented that this opinion is not sought by a party to a pending private
litigation concerning the issue addressed herein. You have also represented
that this opinion is not sought in connection with an investigation or
litigation between a client or firm and the Wage and Hour Division or the
Department of Labor.